The Supreme Court collegium, or a group of five most-senior judges, met on May 11, 2018, to take a call on Justice KM Joseph’s elevation to the top court that was rejected by the government in April. This is the collegium’s second meeting to firm up its response to the centre’s decision that has set up a face-off between the judiciary and the executive and has been described as an attack on the independence of the judiciary. Law Minister Ravi Shankar Prasad denies that the centre’s decision had anything to do with the Uttarakhand High Court Chief Justice’s 2016 verdict cancelling President’s rule in the state. Mr Prasad calls it a legitimate exercise of the powers granted by the top court in several rulings.

The collegium proceedings

“The Chief Justice and other members of the Collegium have, in principle, unanimously agreed that the recommendation for appointment of Mr. Justice K.M. Joseph, Chief Justice, Uttarakhand High Court, as a judge of the Supreme Court should be reiterated,” the signed resolution of the collegium said, at the end of a closed-door meeting that went on for over an hour.

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The government had objected to his appointment, saying he was too junior to become a Supreme Court judge. The Centre had said Justice Joseph’s “comparatively small” parent High Court of Kerala was already “adequately represented” in the apex court and among High Court Chief Justices.

When the collegium sends the file back, the government will have to accept the recommendation.

The collegium intends to send Justice Joseph’s name along with other names being considered for Supreme Court judgeships.

This means that he would have to wait till the collegium decides on the names of the other probable candidate.

“The reiteration (of Justice Joseph) should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as judges of the Supreme Court, for which detailed discussion is required,” the resolution said.

The Collegium is to meet again on May 16 to discuss the other judges.

A source in the apex court said the collegium had initially discussed sending back the file of Justice Joseph first and not wait till the other names are finalised. Members also deliberated on whether Justice Joseph would lose his seniority if his name was clubbed with the others. This issue may come up at the next meeting.

Legal experts asked why the collegium, having “unanimously agreed” to reiterate his name, should wait till the others are picked.

The collegium, which had met last on May 2, parted on an inconclusive note.

The previous meet had also set in motion discussions on the names of judges from Calcutta, Rajasthan, and Telangana & Andhra Pradesh High Courts for elevation, in view of the “concept of fair representation.”

Friday’s meeting came in the backdrop of a letter written by Justice Chelameswar, the number two-judge of the SC, to the Chief Justice, strongly backing Justice Joseph.

After a three-month hiatus, the government cleared Indu Malhotra’s name while returning Justice Joseph’s file to the collegium even though both names were sent together. Justice Malhotra is already functioning as a Supreme Court judge.

Judgment

The Supreme Court collegium of five senior Judges, which met on Friday, agreed “in principle” that it would reiterate its previous recommendation – returned by the Centre for reconsideration – on appointing the chief justice of the Uttarakhand high court, Justice K.M.Joseph, as a judge of the apex court. But it has decided to do so only while recommending – presumably on May 16 – the elevation of other chief justices of high courts, who may be in the zone of consideration, for appointment as Supreme court judges.

There are currently seven vacancies in the Supreme Court, with two more vacancies likely to arise in the next two months, due to the retirement of Justices J. Chelameswar on June 22, and Justice Adarsh Kumar Goel, on July 6. But it is likely that the collegium may first consider six chief justices, in addition to K.M. Joseph, for filling the current vacancies in the apex court.

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